Delhi District Court
North Delhi Municipal Corporation vs . Rajesh Kumar on 6 May, 2023
North Delhi Municipal Corporation vs. Rajesh Kumar
IN THE COURT OF SH. ALOK SHUKLA,
ADDL. DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
CNR No.:- DLCT01-007704-2022
MCA No.:- 02/2022
MCA DJ No.:- 22/2022
IN THE MATTER OF :-
North Delhi Municipal Corporation,
Through its Commissioner,
Civic Centre, Minto Road,
New Delhi 110002 ....Appellant
Versus
Sh. Rajesh Kumar,
S/O Sh. Chattar Singh,
R/O C-1845, Jahangir Puri,
Delhi 110033 ....Respondent
MISCELLANEOUS CIVIL APPEAL AGAINST THE
IMPUGNED ORDER DATED 25.02.2022, PASSED BY LD.
CIVIL JUDGE, DISTRICT CENTRAL, TIS HAZARI
COURTS, DELHI IN EXECUTION NO. 869/20, TITLED AS
"RAJESH KUMAR VS. COMMISSIONER NDMC"
Date of institution of the Appeal : 18/05/2022
Date on which Judgment was reserved : 24/04/2023
Date of Judgment : 06/05/2023
::- J U D G M E N T -::
1. The appellant was Judgment debtor and the
respondent was decree holder defendant before the Ld. Trial
Court. Appellant and respondent are respectively referred in this
MCA DJ NO. 22/2022 Page 1 of 13
North Delhi Municipal Corporation vs. Rajesh Kumar
Judgment according to the original status before the Ld. Trial
Court.
BRIEF FACTS OF THE CASE:
(i) That the decree holder/respondent instituted a suit for Mandatory Injunction against the appellant.
(ii) That it was the case of the respondent that he is employed in MCD as Safai Karamchari since 1995 on temporary basis and he was promoted/regularized from temporary to permanent employee vide letter no.2726/SS/DEMS/RZ/NDMC dated 11.11.2011 w.e.f. 1.3.2003 onwards. It was averred by the respondent that he is entitled to get his enhanced salary of being permanent/regular employee in view of the said letter dated 11.11.2011 w.e.f. 1.3.2003. It was stated by the respondent that he started getting his enhanced salary as permanent employee w.e.f. 29.12.2011. It was averred by the respondent that his entire arrears of enhanced salary of being permanent/regular employee w.e.f. 1.3.2003 to 11.11.2011 was not paid.
(iii) That therefore, the respondent has filed the suit for mandatory injunction and sought direction to implement the order and release the arrears of enhanced salary from 1.3.2003 to 29.12.2011 alongwith interest @ 18% p.a. for the delayed payment w.e.f. 1.3.2003.
(iv) That the Appellant/judgment debtor filed the Written Statement and admitted the averments made in the plaint. Ld. trial Court on the basis of admissions made in the MCA DJ NO. 22/2022 Page 2 of 13 North Delhi Municipal Corporation vs. Rajesh Kumar Written Statement vide judgment dated 17.02.2020 decreed the suit under Order XII Rule 6 CPC in favour of the respondent and against the appellant. Respondent had also calculated the arrears as well dues towards non-matriculation arrears. On the basis of calculations made by the Respondents himself, the Ld. Trial Court directed the appellant to release Rs.5,02,000/- for arrears of enhanced pay and non-matriculation alongwith interest @9% per annum within 2 months of the decree.
(v) No Appeal was preferred by the Appellant against the judgment and decree dated 17.02.2020.
(vi) That the respondent filed the execution petition on the basis of the judgment and decree dated 17.02.2020 against the appellant.
(vii) That the appellant filed the objections to the execution petition and took various objections e.g. that the execution is abuse and misuse of process of law and is legally not maintainable. The appellant also submitted in the objections that the respondent has failed to prove his false and frivolous claim in the suit and the ld. trial Court without observing the settled provisions of law passed the impugned order/decree merely on the so called admission. It was also submitted that the Municipal Counsel failed to take the material legal and other objections while filing the written statement in the suit, resulting into passing of the bad and erroneous impugned order/decree by the ld. trial Court.
(viii) That the appellant further submitted in the objections that the respondent had filed the suit for mandatory injunction, but sought a decree for recovery of the alleged MCA DJ NO. 22/2022 Page 3 of 13 North Delhi Municipal Corporation vs. Rajesh Kumar amount towards the arrears of enhanced salary from 1.3.2003 to 2011. The respondent didn't file the suit for recovery of the alleged amount towards the arrears of enhanced salary nor had valued the suit for the said purpose nor paid the ad valorem court fee on the money decree as prayed for by the respondent under the garb of the suit for mandatory injunction. Hence, on this very ground no decree could be passed and the impugned order/decree so passed by the ld. trial Court is bad and erroneous in the eyes of law.
(ix) That the appellant has further submitted in the objections that the respondent had filed the suit for mandatory injunction for the release of arrears of enhanced salary from 1.3.2003 to the year 2011, while the suit was filed on or after 30th August,2018 and apparently, the suit for the recovery of the said alleged arrears was barred by time limitation and was filed beyond the limitation of 3 years period. Hence, on this legal issue of limitation, the suit ought to have been dismissed by the ld. trial Court and no decree could have been passed. Since the said issue of limitation was/is a legal issue, therefore, the ld. trial Court ought to have taken itself cognizance and consideration on the maintainability of the suit and since the suit was barred by time limitation, the same ought to have been dismissed outrightly.
(x). That the appellant has further submitted in the objections that vide impugned order dated 17.02.2020, the ld. trial Court has passed the impugned decree for recovery of Rs.5,02,000/- alongwith interest @ 9% per annum. The impugned decree so passed by the ld. trial Court is bad and erroneous and without taking into consideration the material MCA DJ NO. 22/2022 Page 4 of 13 North Delhi Municipal Corporation vs. Rajesh Kumar legal issue that the pecuniary jurisdiction and limits of the ld. trial Court were upto Rs.3,00,000/- and the ld. trial Court was legally not competent to try and adjudicate upon the said suit and pass the impugned decree for recovery of Rs.5,02,000/- alongwith interest. Hence, the impugned decree so passed by the Ld. Trial Court is legally not maintainable and execution was/is liable to be dismissed.
(xi). That the appellant has further submitted in the objections that the respondent had preferred the said civil suit wrongly and erroneously, when as per the case of the respondent he had raised the dispute between the management and the workman and the respondent ought to have invoked the provisions of Industrial Dispute Act and the said civil suit was legally not maintainable.
(xii). That the appellant has further submitted in the objections that the said civil suit as filed by the respondent was legally not maintainable as no statutory notice as provided U/s 477/478 of DMC Act or Section 80 of CPC was issued and served by the respondent upon the appellant and the suit without the statutory legal notice was legally not maintainable and ought to have been dismissed for want of statutory notice.
(xiii). That the appellant has further submitted in the objections that it is settled law that even if admission of the pleadings by the defendant party, there cast duty upon the plaintiff to prove his case through documentary and other evidence and admittedly, the plaintiff has not filed any document or other evidence to prove his false and frivolous claims. Even otherwise, the alleged claimed amount was MCA DJ NO. 22/2022 Page 5 of 13 North Delhi Municipal Corporation vs. Rajesh Kumar legally neither due nor payable as per settled law and was barred by time limitation.
(xiv). That the appellant has further submitted in the objections that the suit as filed by the plaintiff was legally not maintainable in view of the fact that the suit was filed against the administrator and officials of the North Delhi Municipal Corporation and no suit was filed in the name of North Delhi Municipal Corporation and thus the suit was legally not maintainable and should have been dismissed.
(xv). That the said objections filed by the appellant were dismissed by the ld. Executing Court of Civil Judge, Central, Tis Hazari Court, Delhi, vide impugned order dated 25.02.2022.
(xvi). That the appellant thus being aggrieved of the impugned order dated 25.02.2022, prefers the present appeal before this court.
2. In view of the aforementioned facts and submissions, the following points for determination arise for consideration in the present Miscellaneous Appeal.
(ii) Whether the Executing Court has power to rectify the legal infirmity in the order/decree passed by the Ld. Trial Court?
(iii) Whether the impugned order passed by the Ld. Executing Court is based on conjectures and surmises?
(iv) What order?
MCA DJ NO. 22/2022 Page 6 of 13North Delhi Municipal Corporation vs. Rajesh Kumar FINDINGS AND CONCLUSIONS
3. It is urged on behalf of the appellant that Ld. Executing court has failed to appreciate that the Order/decree passed by the Ld. Trial court was bad in law and erroneous and thus liable to be rectified by the court. It is urged on behalf of the appellant that Ld. Executing Court has failed to appreciate that the plaintiff/DH has filed the suit for mandatory injunction and sought a decree for recovery of the alleged amount towards the arrears of enhanced salary from 01/03/2003 to the year 2011 and the Ld. Trial Court had erred in passing judgment and decree dated 17/02/2020 on the basis of provisions of order under Order 12 Rule 6 CPC in favor of the respondent and against the appellant, and directed the appellant to release an amount of Rs.5,02,000 for arrears of enhanced pay and non- matriculation along with interest @ 9% per annum.
4. It is urged on behalf of the appellant that the decree in respect of which execution was filed was passed by Ld. Trial court for an amount of Rs. 5,02,000/- along with interest @ 9% per annum which was beyond pecuniary jurisdiction of the Ld. Trial Court which is upto Rs. 3 lakhs.
5. It is further urged on behalf of the appellant that Ld. trial court failed to appreciate that the suit filed by the plaintiff/DH is itself barred by limitation and the same ought to have been dismissed outrightly.
6. It is argued on behalf of the appellant that Ld. executing Court dismissed the objections filed by the appellant MCA DJ NO. 22/2022 Page 7 of 13 North Delhi Municipal Corporation vs. Rajesh Kumar without giving any thoughtful consideration and without application of judicial mind and failed to appreciate that Ld. Executing Court in certain circumstances and conditions, when there appear legal infirmities on record in the order/decree, has power to rectify the order and the decree.
7. Reliance is placed on the judgment passed by the Hon'ble High Court in Simplex Infrastructures Ltd. vs. National Highways Authority of India and judgment passed by the Hon'ble Supreme Court in AIR 1996 Supreme Court 1819 in Urban Improvement Trust, Jodhpur vs. Gokul Narain.
8. It is argued by the Ld. counsel for the appellant that decree passed by the court was not having jurisdiction to entertain claims and question of nullity can be set aside up at any stage including execution.
9. On the other hand, despite repeated opportunities respondent has failed to address final arguments.
10. It is settled preposition of law that an Executing Court cannot go beyond the decree. Section 47 of the Code of Civil Procedure confers wide powers on the executing Court to decide all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree. Such questions must be decided by the executing Court and no separate suit is maintainable for the purpose. Section 47 of CPC reads as under:
MCA DJ NO. 22/2022 Page 8 of 13North Delhi Municipal Corporation vs. Rajesh Kumar "All questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.........."
11. Section 47 CPC provide wide powers to the Executing Court relating to the execution of the decree, however objections under Order 47 C.P.C. cannot take the form of retrial or Appeal against the judgment and decree. Hon'ble Supreme Court in Rahul S. Shah v. Jinendra Kumar Gandhi, (2021) 6 SCC 418 while discussing the misuse of provision of Section 47 CPC observed as under:
24. In respect of execution of a decree, Section 47 CPC contemplates adjudication of limited nature of issues relating to execution i.e. discharge or satisfaction of the decree and is aligned with the consequential provisions of Order 21 CPC. Section 47 is intended to prevent multiplicity of suits. It simply lays down the procedure and the form whereby the court reaches a decision. For the applicability of the section, two essential requisites have to be kept in mind. Firstly, the question must be the one arising between the parties and secondly, the dispute relates to the execution, discharge or satisfaction of the decree. Thus, the objective of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible.
25. These provisions contemplate that for execution of decrees, executing court must not go beyond the decree. However, there is steady rise of proceedings akin to a retrial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts despite there being a decree in their favour. Experience has shown that various objections are filed before the executing court and the decree-holder is deprived of the fruits of the litigation and the judgment-debtor, in abuse of process of law, is allowed to benefit from the subject-
matter which he is otherwise not entitled to.
MCA DJ NO. 22/2022 Page 9 of 13North Delhi Municipal Corporation vs. Rajesh Kumar
12. Ld. Trial Court has rightly relied upon the judgment passed in Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman (1970) 1 SCC 670 wherein it has been held that :
"6. A court executing a decree cannot go behind the decree between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
8. If the decree is on the face of record without jurisdiction and the question does not relate to the territorial jurisdiction or Under Section 11 of the Suits Valuation Act, objection to the jurisdiction of the court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the executing proceeding."
13. It is settled that before the Executing Court, the questions related to jurisdiction of the court, which passed the decree may be raised. In the present case the judgment and decree in respect of which execution petition has been filed is based on the admissions in the Written statement and thus it is apparent that the appellant had not taken objections as to jurisdiction of the Court before the Trial Court and has admitted the contents of the plaint. It is apposite to refer to section 21 of the CPC in this regard, which reads as under:
21. Objections to Jurisdiction.
(1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.MCA DJ NO. 22/2022 Page 10 of 13
North Delhi Municipal Corporation vs. Rajesh Kumar (2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.
14. Admittedly in the present matter, the Appellant has not taken objection as to pecuniary jurisdiction of the Court passing the decree in the Written Statement nor filed any appeal challenging the judgment and decree. In Harshad Chiman Lal Modi v DLF Universal Ltd.,(2005) 7 SCC 791, the Hon'ble Supreme Court held that an objection to territorial and pecuniary jurisdiction has to be taken at the earliest possible opportunity. If it is not raised at the earliest, it cannot be allowed to be taken at a subsequent stage.
15. In terms of section 21 CPC following two conditions must be satisfied for taking an objection as to pecuniary jurisdiction of the Court unless (1) the objection as to pecuniary jurisdiction has been taken before the Court of first instance and (2) there is a consequent failure of justice. In the present case no objection as to jurisdiction of the Court was taken by the Appellant. Further the arguments that the Executing Court may MCA DJ NO. 22/2022 Page 11 of 13 North Delhi Municipal Corporation vs. Rajesh Kumar considered the merits of the judgment and rectify the decree is without merits. The Executing Court cannot go beyond the decree. Further there is no consequent failure of justice as the judgment and decree in respect of which execution petition has been filed was passed on the basis of admissions made in the Written Statement and no plea has been taken that the admissions were unwarranted and the only argument that has been advanced on behalf of the appellant is that the Counsel before the Ld. Trial Court failed to take objection as to jurisdiction of the Court. Further the objections raised before the Ld. Executing Court was in the nature of appeal, which is beyond the scope of Section 47 CPC. Accordingly I do not find any infirmity in the order and appeal is dismissed.
16. In view of the discussions, as adumbrated above, I hereby pass the following:
:: - FINAL ORDER - ::
A. The miscellaneous civil appeal of the appellant is hereby dismissed.
B. The Parties shall bear their own respective costs.
17. The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court.
MCA DJ NO. 22/2022 Page 12 of 13North Delhi Municipal Corporation vs. Rajesh Kumar
18. Decree-sheet in the Appeal be prepared accordingly, in terms of this Judgment.
19. Miscellaneous Appeal file be consigned to record room after due compliance.
Announced in the open court on this 06th Day of May, 2023.
(Alok Shukla) ADJ-07 (Central) Tis Hazari Courts, Delhi MCA DJ NO. 22/2022 Page 13 of 13